The State Lands
Commission violated the public trust doctrine when it approved the dredge
mining of sand from sovereign lands under the San Francisco Bay, the First
District Court of Appeal ruled yesterday.

Div. Four said
the commission and a San Francisco Superior Court judge were wrong in
concluding that an adequate review under the California Environmental Quality
Act obviated the need for separate consideration of environmentalists’ claims
that the plan was an inappropriate use of public trust land.

San Francisco
Baykeeper, Inc., which has been fighting the project for years, sought a writ
of mandate after the commission decided last year to renew, for 10-year terms,
leases that were originally granted in 1998.

Lease Terms

The leases allow
three companies to extract sand from below Central San Francisco Bay, Suisun
Bay, and the western Sacramento-San Joaquin River Delta, to be used in Bay Area
construction project. Baykeeper argues that the mining is exacerbating a
serious erosion problem, but the commission concluded that the alternative,
requiring builders to bring in sand from a greater distance, would be at least
as harmful to the environment.

The leaseholders
requested in 2006 that the original 10-year terms be extended. The commission
had been granting month-to-month extensions until it made its decision in
October of last year to grant the full 10-year extensions, limiting the amount
of extracted sand at each project parcel to a baseline tied to past activity.

San Francisco
Superior Court Judge Terri L. Jackson denied the writ, concluding that the
commission had complied with its obligations under both CEQA and the public
trust doctrine.

Ruvolo Opinion

Presiding
Justice Ignacio Ruvolo, however, writing for the Court of Appeal, said
Baykeeper was entitled to relief because the administrative record “does not
affirmatively demonstrate that [the commission’ complied with its public trust
obligations.”

The commission,
he elaborated, was not necessarily wrong in arguing that “[c]ompliance with
other environmental statutes can serve to fulfill an agency’s trust
obligations.” But the commission’s broader argument, “that CEQA review of a
project involving sovereign property necessarily satisfies the SLC’s public
trust obligations,” is unsupported by the case law, the presiding justice said.

He also rejected
the commission’s argument that it satisfied it public trust obligations in a
portion of the Final Environmental Impact Report in which it acknowledged
potential impacts, but concluded that those impacts would be mitigated through
compliance with existing land use policies.

‘Brief
Acknowledgment’

But that “brief
acknowledgment,” Ruvolo said, relates to the obligations of other agencies and
“reinforces our conclusion that the SLC did not implicitly consider its own obligations
under the public trust doctrine as part of its CEQA review of this project.”

The court, did,
however, agree with the trial judge that the commission did not violate CEQA. The
commission staff, interested citizens, and public agencies including the San
Francisco Bay Conservation and Development Commission “thoroughly explored” the
issue of coastal erosion, he said, adding that Baykeeper failed to identify any
available information that the commission did not review.

The presiding
justice did criticize the commission for failing to consult with the Coastal
Commission and the city. But that CEQA violation was harmless, he said, absent
a showing that the lands commission lacked pertinent information at the time of
the decision.